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EXHIBIT 10.2
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REGISTRATION RIGHTS AGREEMENT
Dated as of August 28, 1997
by and among
SC INTERNATIONAL SERVICES, INC.,
(as Issuer)
the Guarantors named herein,
(as Guarantors)
and
BT SECURITIES CORPORATION,
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
CREDIT SUISSE FIRST BOSTON CORPORATION,
▇▇▇▇▇▇▇, SACHS & CO.,
▇▇▇▇▇ ▇▇▇▇▇▇ INC.,
BANKERS TRUST INTERNATIONAL PLC,
(as Initial Purchasers)
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$300,000,000
9 1/4% SENIOR SUBORDINATED NOTES DUE 2007
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This Registration Rights Agreement is dated as of August 28, 1997,
by and among SC International Services, Inc., a Delaware corporation (the
"Issuer"), Sky Chefs, Inc., ("Sky Chefs"), Caterair International, Inc. (II)
("CII"), Caterair International Corporation ("Caterair"), and the additional
guarantors named on the signature pages hereto (together with Sky Chefs, CII and
Caterair, the "Guarantors") and BT Securities Corporation, ▇.▇. ▇▇▇▇▇▇
Securities Inc., Credit Suisse First Boston Corporation, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and Bankers Trust International PLC (the "Initial
Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated
August 22, 1997, between the Issuer, the Guarantors and the Initial Purchasers
(the "Purchase Agreement"), which provides for the sale by the Issuer and the
Guarantors to the Initial Purchasers of $300,000,000 aggregate principal amount
of 9 1/4% Senior Subordinated Notes due 2007 of the Issuer (the "Notes"). In
order to induce the Initial Purchasers to enter into the Purchase Agreement, the
Issuer and the Guarantors have agreed to provide the registration rights set
forth in this Agreement for the benefit of the Initial Purchasers and any
subsequent holder or holders of the Notes. The execution and delivery of this
Agreement is a condition to the closing of the transactions contemplated by the
Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: As defined in Section 4(a) hereof.
Advice: As defined in Section 5 hereof.
Affiliate: With respect to any specified person, "Affiliate"
shall mean any other person directly or indirectly controlling or
controlled by or under direct or indirect common control with such
specified person. For the purposes of this definition, "control,"
when used with respect to any person, means the power to direct
the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by
contract or otherwise and the terms "affiliated," "controlling"
and "controlled" have meanings correlative to the foregoing.
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Agreement: This Registration Rights Agreement, as the same may be
amended, supplemented or modified from time to time in accordance with the terms
hereof.
Applicable Period: As defined in Section 2(b) hereof.
Business Day: Any day except a Saturday, a Sunday or another day
on which banking institutions in New York, New York generally are required or
authorized by law or other government action to be closed.
Consummate or consummate: When used to qualify the term "Exchange
Offer," shall mean validly and lawfully to issue and deliver the Exchange Notes
pursuant to the Exchange Offer for all Notes validly tendered and not validly
withdrawn pursuant thereto in accordance with the terms of this Agreement.
Effectiveness Date: With respect to (i) the Exchange Registration
Statement, the 150th day after the Issue Date and (ii) any Shelf Registration
Statement, the 90th day after the Filing Date with respect thereto.
Effectiveness Period: As defined in Section 3(a) hereof.
Event Date: As defined in Section 4(b).
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the SEC pursuant thereto.
Exchange Date: As defined in Section 2(d) hereof.
Exchange Notes: The 9 1/4% Senior Subordinated Notes due 2007 of
the Issuer, that are identical to the Notes in all material respects, except
that the provisions regarding restrictions on transfer shall be modified, as
provided in the Indenture (or the indenture pursuant to which the Exchange Notes
are issued), and the issuance thereof pursuant to the Exchange Offer shall have
been registered pursuant to an effective Registration Statement in compliance
with the Securities Act.
Exchange Offer: An offer to issue, in exchange for any and all of
the Notes, a like aggregate principal amount of Exchange Notes, which offer
shall be made by the Issuer pursuant to Section 2 hereof.
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Exchange Registration Statement: As defined in Section 2(a)
hereof.
Filing Date: (A) If no Registration Statement has been filed by
the Issuer and the Guarantors pursuant to this Agreement, the 45th day after the
Issue Date; and (B) in any other case (which may be applicable notwithstanding
the consummation of the Exchange Offer), the 90th day after delivery of a Shelf
Notice.
Guarantors: As defined in the preamble hereof.
Holder: Any holder of Registrable Notes.
Indemnified Person: As defined in Section 7(c) hereof.
Indemnifying Person: As defined in Section 7(c) hereof.
Indenture: The Indenture, dated as of August 28, 1997, between the
Issuer, the Guarantors and The Bank of New York, as trustee thereunder, pursuant
to which the Notes are issued, as amended or supplemented from time to time in
accordance with the terms thereof.
Initial Purchasers: As defined in the preamble hereof.
Initial Shelf Registration: As defined in Section 3(a).
Inspectors: As defined in Section 5(n).
Issue Date: The date on which the Notes were issued and sold to
the Initial Purchasers pursuant to the Purchase Agreement.
Issuer: As defined in the preamble hereof.
Notes: As defined in the preamble hereof.
Participant: As defined in Section 7(a).
Participating Broker-Dealer: As defined in Section 2 hereof.
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Person: Any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
or any government or political subdivision or agency, department or
instrumentality thereof.
Private Exchange: As defined in Section 2 hereof.
Private Exchange Notes: As defined in Section 2 hereof.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated pursuant to the Securities
Act), as amended or supplemented by any prospectus supplement, with respect to
the terms of the offering of any portion of the Registrable Notes covered by
such Registration Statement, and all other amendments and supplements to any
such prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference, if any, in
such prospectus.
Purchase Agreement: As defined in the preamble hereof.
Records: As defined in Section 5(n) hereof.
Registrable Notes: Each Note upon original issuance thereof and at
all times subsequent thereto, each Exchange Note as to which Section 2(c)(iv)
hereof is applicable upon original issuance and at all times subsequent thereto
and each Private Exchange Note upon original issuance thereof and at all times
subsequent thereto, until in the case of any such Note, Exchange Note or Private
Exchange Note, as the case may be, the earliest to occur of (i) a Registration
Statement (other than, with respect to any Exchange Note as to which Section
2(c)(iv) hereof is applicable, the Exchange Registration Statement) covering
such Note, Exchange Note or Private Exchange Note has been declared effective by
the SEC and such Note, Exchange Note or such Private Exchange Note, as the case
may be, has been disposed of in accordance with such effective Registration
Statement, (ii) such Note has been exchanged pursuant to the Exchange Offer for
an Exchange Note or Exchange Notes that may be resold without restriction under
federal securities laws, (iii) such Note, Exchange Note or Private Exchange
Note, as the case may be, ceases to be outstanding for purposes of the Indenture
or (iv) such Note, Exchange Note or Private Exchange
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Note, as the case may be, may be resold without restriction pursuant to Rule 144
under the Securities Act.
Registration Statement: Any registration statement of the Issuer
filed with the SEC that covers any of the Registrable Notes pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference, if any, in such
registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 144A: Rule 144A promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 144(k): Rule 144(k) promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 158: Rule 158 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 174: Rule 174 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 415: Rule 415 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
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Rule 424: Rule 424 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
Shelf Notice: As defined in Section 2(c) hereof.
Shelf Registration: As defined in Section 3(b) hereof.
Shelf Registration Statement: Any Registration Statement relating
to a Shelf Registration.
Special Counsel: Such special counsel to the holders of
Registrable Notes as shall be agreed upon by the Issuer and Holders of a
majority in aggregate principal amount of Registrable Notes, the reasonable
expenses of such Holders will be reimbursed by the Issuer pursuant to Section 6
hereof.
Subsequent Shelf Registration: As defined in Section 3(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture.
underwritten registration or underwritten offering: A registration
in connection with which securities of the Issuer are sold to an underwriter for
reoffering to the public pursuant to an effective Registration Statement.
2. Exchange Offer
(a) To the extent not prohibited by any applicable laws, rules,
regulations or applicable interpretations of the staff of the SEC, the Issuer
and the Guarantors shall (A) prepare and, on or prior to the Filing Date, file
with the SEC a Registration Statement under the Securities Act with respect to
an offer by the Issuer to the holders of the Notes to issue and deliver to such
holders, in exchange for Notes, a like principal amount of Exchange Notes, (B)
use their reason-
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able best efforts to cause the Exchange Registration Statement (as defined) to
be declared effective by the SEC under the Securities Act on or prior to the
Effectiveness Date, and (C) commence the Exchange Offer and use their reasonable
best efforts to issue, on or prior to 195 days after the Issue Date, the
Exchange Notes. The offer and sale of the Exchange Notes pursuant to the
Exchange Offer shall be registered pursuant to the Securities Act on an
appropriate form (the "Exchange Registration Statement") and duly registered or
qualified under all applicable state securities or Blue Sky laws and will comply
with all applicable tender offer rules and regulations under the Exchange Act
and state securities or Blue Sky laws. The Exchange Offer and Private Exchange
shall not be subject to any condition, other than that (i) the Exchange Offer or
Private Exchange, as the case may be, does not violate any applicable laws,
rules, regulations or interpretations of the staff of the SEC, (ii) no action or
proceeding shall have been instituted or threatened in any court or by any
governmental agency which would be reasonably likely to materially impair the
ability of the Issuer to proceed with the Exchange Offer or the Private
Exchange, and no material adverse development shall have occurred in any action
or proceeding with respect to the Issuer and (iii) all governmental approvals
shall have been obtained, which approvals the Issuer deems necessary for the
consummation of the Exchange Offer or the Private Exchange.
Upon consummation of the Exchange Offer in accordance with this
Section 2, the provisions of this Agreement shall continue to apply solely with
respect to Registrable Notes that are Private Exchange Notes and Exchange Notes
as to which Section 2(c)(iv) is applicable and Exchange Notes held by
Participating Broker-Dealers, and the Issuer and the Guarantors shall have no
further obligations to register Registrable Notes (other than Private Exchange
Notes and other than in respect of any Exchange Notes as to which Section
2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities shall be
included in the Exchange Registration Statement other than the Exchange Notes.
Each Holder of Notes that participates in the Exchange Offer will
be required to represent to the Issuer, the Guarantors and their counsel in
writing (which may be contained in the applicable letter of transmittal) that at
the time of the consummation of the Exchange Offer (i) any Exchange Notes
received by such holder will be acquired in the ordinary course of its business,
(ii) such Holder will have no arrangement or understanding with any Person to
participate in the distribution (within the meaning of the Securities Act) of
the Exchange
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Notes and (iii) such Holder is not an Affiliate of the Issuer or any of the
Guarantors.
(b) The Issuer shall include within the Prospectus contained in
the Exchange Registration Statement a section entitled "Plan of Distribution"
which shall contain a summary statement of the positions taken or policies made
by the staff of the SEC with respect to the potential "underwriter" status of
any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under
the Exchange Act) of Exchange Notes received by such broker-dealer in the
Exchange Offer (a "Participating Broker-Dealer"), whether such positions or
policies have been publicly disseminated by the staff of the SEC or such
positions or policies represent the prevailing views of the staff of the SEC.
Such "Plan of Distribution" section shall also expressly permit, to the extent
permitted by applicable policies and regulations of the SEC, the use of the
Prospectus by all Persons subject to the prospectus delivery requirements of the
Securities Act, including, to the extent permitted by applicable policies and
regulations of the SEC, all Participating Broker-Dealers, and include a
statement describing the means by which Participating Broker-Dealers may resell
the Exchange Notes in compliance with the Securities Act.
The Issuer shall use its reasonable best efforts to keep the Exchange
Registration Statement effective and to amend and supplement the Prospectus
contained therein in order to permit such Prospectus to be lawfully delivered by
all Persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as is necessary to comply with applicable law in
connection with any resale of the Exchange Notes covered thereby; provided,
however, that such period shall not exceed 90 days after the consummation of the
Exchange Offer (or such longer period if extended pursuant to the last paragraph
of Section 5 hereof) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, the Initial Purchasers
hold any Notes acquired by them and having, or which are reasonably likely to be
determined to have, the status of an unsold allotment in the initial
distribution, the Issuer, upon the request of the Initial Purchasers, shall,
simultaneously with the delivery of the Exchange Notes in the Exchange Offer,
issue and deliver to such Initial Purchasers, in exchange (the "Private
Exchange") for such Notes held by the Initial Purchasers, a like principal
amount of debt securities of the Issuer, that are identical in all material
respects to the Exchange Notes (the "Private Exchange Notes") (except that they
may bear a customary legend with respect to restrictions
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on transfer). The Private Exchange Notes shall be issued pursuant to the same
indenture as the Exchange Notes and shall bear the same CUSIP number as the
Exchange Notes.
Interest on the Exchange Notes and the Private Exchange Notes will
accrue from (A) the later of (i) the last interest payment date on which
interest was paid on the Notes surrendered in exchange therefor or (ii) if the
Notes are surrendered for exchange on a date subsequent to the record date for
an interest payment date to occur on or after the date of such exchange and as
to which interest will be paid, the date of such interest payment or (B) if no
interest has been paid on the Notes, from the date of the original issuance of
the Notes.
In connection with the Exchange Offer, the Issuer shall:
(1) mail, or cause to be mailed, to each Holder of Notes entitled
to participate in the Exchange Offer a copy of the Prospectus forming
part of the Exchange Registration Statement, together with an
appropriate letter of transmittal and related documents;
(2) keep the Exchange Offer open for not less than 20 Business
Days after the date that notice of the Exchange Offer is mailed to
Holders of Notes (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer
with an address in the Borough of Manhattan, the City of New York;
(4) permit Holders of Notes to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last Business Day
on which the Exchange Offer shall remain open; and
(5) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer or
the Private Exchange, if any, the Issuer shall:
(1) accept for exchange all Notes validly tendered and not validly
withdrawn pursuant to the Exchange Offer or the Private Exchange, if
any;
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(2) deliver to the Trustee for cancellation all Notes so accepted
for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
Holder of Notes, Exchange Notes or Private Exchange Notes, as the case
may be, equal in principal amount to the Notes of such Holder so
accepted for exchange.
The Exchange Notes and the Private Exchange Notes may be issued
under (i) the Indenture or (ii) an indenture identical in all material respects
to the Indenture, which in either event shall provide that the Exchange Notes
shall not be subject to the transfer restrictions set forth in the Indenture and
the Private Exchange Notes shall be subject to the transfer restrictions set
forth in the Indenture. The Indenture or such indenture shall provide that the
Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent
together on all matters as one class and that neither the Exchange Notes, the
Private Exchange Notes nor the Notes will have the right to vote or consent as a
separate class on any matter.
(c) If, (i) because of any change in law or in currently
prevailing interpretations of the staff of the SEC, the Issuer and the
Guarantors are not permitted to effect the Exchange Offer, (ii) the Exchange
Offer is not consummated within 195 days of the Issue Date, (iii) any Holder of
Private Exchange Notes so requests in writing to the Issuer at any time after
the consummation of the Exchange Offer, or (iv) in the case of any Holder that
participates in the Exchange Offer, such Holder does not receive Exchange Notes
on the date of the exchange that may be sold without restriction under federal
securities laws (other than due solely to the status of such Holder as an
Affiliate of the Issuer within the meaning of the Securities Act or any
prospectus delivery requirements applicable to such Holder) and so notifies the
Issuer within 30 days after such Holder first becomes aware of such
restrictions, in the case of each of clauses (i) to and including (iv) of this
sentence, then the Issuer shall promptly deliver to the Holders of the Notes and
the Trustee written notice thereof (the "Shelf Notice") and shall file a Shelf
Registration pursuant to Section 3 hereof.
3. Shelf Registration
If at any time a Shelf Notice is delivered as contemplated by
Section 2(c) hereof, then:
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(a) Shelf Registration. The Issuer and the Guarantors shall file
with the SEC a Registration Statement for an offering to be made on a continuous
basis pursuant to Rule 415 covering all of the Registrable Notes not permitted
to be exchanged in the Exchange Offer in accordance with the terms of this
Agreement, Private Exchange Notes and Exchange Notes as to which Section
2(c)(iv) is applicable (the "Initial Shelf Registration"). The Issuer and the
Guarantors shall use their reasonable best efforts to file with the SEC the
initial Shelf Registration on or before the applicable Filing Date. The Initial
Shelf Registration shall be on Form S-1 or another appropriate form permitting
registration of such Registrable Note for resale by the Holders thereof in the
manner or manners designated by them (including, without limitation, one or more
underwritten offerings).
The Issuer and the Guarantors shall use their reasonable best
efforts to cause the Initial Shelf Registration to be declared effective under
the Securities Act on or prior to the Effectiveness Date and to keep the Initial
Shelf Registration continuously effective under the Securities Act, subject to
Section 3(e) hereof, until the date which is two years from the Issue Date,
subject to extension pursuant to the last paragraph of Section 5 hereof (the
"Effectiveness Period"), or such shorter period ending when all Registrable
Notes covered by the Initial Shelf Registration have been sold in the manner set
forth and as contemplated in the Initial Shelf Registration or, if applicable, a
Subsequent Shelf Registration covering all of the Registrable Notes has been
declared effective; provided, however, that the Effectiveness Period in respect
of the Initial Shelf Registration shall be extended to the extent required to
permit dealers to comply with the applicable prospectus delivery requirements of
Rule 174 under the Securities Act and as otherwise provided herein and shall be
subject to reduction to the extent that the applicable provisions of Rule 144(k)
are amended or revised to reduce the two year holding period set forth therein.
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration ceases to be effective for any
reason at any time during the Effectiveness Period (other than because of the
sale of all of the securities registered thereunder or suspension of
effectiveness permitted under Section 3(e) hereof), the Issuer and the
Guarantors shall use their reasonable best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in any event
shall within 45 days of such cessation of effectiveness amend the Initial Shelf
Registration in a
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manner to obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional Shelf Registration Statement pursuant to Rule 415
covering all of the Registrable Notes covered by and not sold under the Initial
Shelf Registration or an earlier Subsequent Shelf Registration (each, a
"Subsequent Shelf Registration"). If a Subsequent Shelf Registration is filed,
the Issuer and the Guarantors shall, subject to Section 3(e), use their
reasonable best efforts to cause the Subsequent Shelf Registration to be
declared effective under the Securities Act as soon as practicable after such
filing and to keep such Subsequent Shelf Registration continuously effective for
a period equal to the number of days in the Effectiveness Period less the
aggregate number of days during which the Initial Shelf Registration or any
Subsequent Shelf Registration was previously continuously effective. As used
herein the term "Shelf Registration" means the Initial Shelf Registration and
any Subsequent Shelf Registration.
(c) Supplements and Amendments. The Issuer and the Guarantors
shall promptly supplement and amend any Shelf Registration if required by the
rules, regulations or instructions applicable to the registration form used for
such Shelf Registration, if required by the Securities Act, or if reasonably
requested by the Holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Registration Statement or by any underwriter
of such Registrable Notes.
(d) No Holder of Registrable Notes may include any of its
Registrable Notes in any Shelf Registration Statement pursuant to this Agreement
unless and until such Holder furnishes to the Issuer in writing, within 20 days
after receipt of a request therefor, such information as the Issuer may
reasonably request for use in connection with any Shelf Registration Statement
or Prospectus or preliminary prospectus included therein. No Holder of
Registrable Notes shall be entitled to Additional Interest pursuant to Section 4
hereof unless and until such Holder shall have provided all such reasonably
requested information. Each Holder of Registrable Notes as to which any Shelf
Registration Statement is being effected agrees to furnish promptly to the
Issuer all information required to be disclosed in order to make the information
previously furnished to the Issuer by such holder not materially misleading.
(e) Suspension Periods. Notwithstanding anything to the contrary
set forth herein, the Issuer and the Guarantors may, during the Effectiveness
Period, suspend the effectiveness of any Shelf Registration Statement for a
period not to exceed 30 days in any 360 day period if (i) an event occurs and is
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continuing as a result of which such Shelf Registration Statement would, in each
of the Issuer's and the Guarantors' good faith judgment, contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading and (ii) (a) the Issuer and the Guarantors
determine in their good faith judgment that the disclosure of such event at such
time would have a material adverse effect on the business, operations or
prospects of the Issuer or (b) the disclosure otherwise relates to a pending
material business transaction which has not yet been publicly disclosed. The
Issuer and the Guarantors shall not be required to pay any Additional Interest
due to the suspension of a Shelf Registration Statement pursuant to this Section
3(e).
4. Additional Interest
(a) The parties hereto agree that the holders of Registrable
Notes will suffer damages if the Issuer and the Guarantors fail to fulfill their
obligations pursuant to Section 2 or Section 3, as applicable, and that it would
not be feasible to ascertain the extent of such damages. Accordingly, the Issuer
agrees to pay, as liquidated damages, additional interest on the Notes
("Additional Interest") under the circumstances and to the extent set forth
below:
(i) (A) neither the Exchange Registration Statement nor the
Initial Shelf Registration has been filed on or prior to the Filing
Date applicable thereto or (B) notwithstanding that the Issuer and
Guarantors have consummated or will consummate the Exchange Offer, the
Issuer and the Guarantors are required to file a Shelf Registration and
such Shelf Registration is not filed on or prior to the Filing Date
applicable thereto, then, commencing on the day after any such Filing
Date, Additional Interest shall accrue on the principal amount of the
Registrable Notes at a rate of 0.50% per annum for the first 90 days
immediately following such applicable Filing Date, and such Additional
Interest rate shall increase by an additional 0.50% per annum at the
beginning of each subsequent 90-day period; or
(ii) if (A) neither the Exchange Registration Statement nor the
Initial Shelf Registration is declared effective by the SEC on or prior
to the Effectiveness Date applicable thereto or (B) notwithstanding
that the Issuer and the Guarantors have consummated or will consummate
the Exchange Offer, the Issuer and the Guarantors are required
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to file a Shelf Registration and such Shelf Registration is not
declared effective by the SEC on or prior to the Effectiveness Date
applicable to such Shelf Registration, then, commencing on the day
after such Effectiveness Date, Additional Interest shall accrue on the
principal amount of the Registrable Notes at a rate of 0.50% per annum
for the first 90 days immediately following the day after such
Effectiveness Date, and such Additional Interest rate shall increase by
an additional 0.50% per annum at the beginning of each subsequent
90-day period; or
(iii) if (A) the Issuer and the Guarantors have not exchanged
Exchange Notes for all Notes validly tendered in accordance with the
terms of the Exchange Offer on or prior to the 195th day after the
Issue Date or (B) if applicable, a Shelf Registration has been declared
effective and such Shelf Registration ceases to be effective at any
time during the Effectiveness Period (other than as permitted
hereunder, including, without limitation, in accordance with Section
3(e) hereof), then Additional Interest shall accrue on the principal
amount of the Registrable Notes at a rate of 0.50% per annum for the
first 90 days commencing on the (x) 195th day after the Issue Date, in
the case of (A) above, or (y) the day such Shelf Registration ceases to
be effective in the case of (B) above (other than as specifically
permitted by this Agreement), and such Additional Interest rate shall
increase by an additional 0.50% per annum at the beginning of each such
subsequent 90-day period;
provided, however, that the Additional Interest rate on the Notes may not exceed
at any one time in the aggregate 1.50% per annum; provided, further, however,
that (1) upon the filing of the applicable Exchange Registration Statement or
the applicable Shelf Registration as required hereunder (in the case of clause
(i) above of this Section 4), (2) upon the effectiveness of the Exchange
Registration Statement or the applicable Shelf Registration as required
hereunder (in the case of clause (ii) of this Section 4), or (3) upon the
exchange of the Exchange Notes for all Notes tendered (in the case of clause
(iii)(A) of this Section 4), or upon the effectiveness of the applicable Shelf
Registration which had ceased to remain effective (in the case of (iii)(B) of
this Section 4) (other than as specifically permitted by this Agreement),
Additional Interest on the Notes in respect of which such events relate as a
result of such clause (or the relevant subclause thereof), as the case may be,
shall cease to accrue and, in any case, such Additional Inter-
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est shall not be payable in respect of more than one of clauses (i), (ii) or
(iii) at any one time.
(b) The Issuer shall notify the Trustee within one Business Day
after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Any amounts of
Additional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section
4 will be payable in cash semi-annually on each March 1 and September 1 (to the
Holders of record on the February 15 and August 15 immediately preceding such
dates), commencing with the first such date occurring after any such Additional
Interest commences to accrue. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest rate by the
principal amount of the Registrable Notes, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360.
5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Sections 2 or 3 hereof, the Issuer and the Guarantors shall effect
such registrations to permit the sale of the applicable Registrable Notes
covered thereby in accordance with the intended method or methods of disposition
thereof, and pursuant thereto and in connection with any Registration Statement
filed by the Issuer and the Guarantors hereunder, the Issuer and Guarantors
shall:
(a) In the case of a Shelf Registration, a reasonable period of
time prior to the initial filing of a Shelf Registration Statement or
Prospectus and a reasonable period of time prior to the filing of any
amendment or supplement thereto (including any document that would be
incorporated or deemed to be incorporated therein by reference),
furnish to the Holders of the Registrable Notes included in such Shelf
Registration Statement, their counsel and the managing underwriters, if
any, copies of all such documents proposed to be filed, which documents
(other than those incorporated or deemed to be incorporated by
reference) will be subject to the review of such Holders, their Special
Counsel and such underwriters, if any. The Issuer and the Guarantors
shall not file any such Shelf Registration Statement or related
Prospectus or any amendments or supplements thereto to which the
Holders of a ma-
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jority in principal amount of the Registrable Notes included in such
Shelf Registration Statement shall reasonably object on a timely basis;
(b) Prepare and file with the SEC such amendments, including
post-effective amendments, to each Registration Statement as may be
necessary to, subject to Section 3(e) hereof, keep such Registration
Statement continuously effective for the Effectiveness Period or the
Applicable Period or until consummation of the Exchange Offer, as the
case may be; cause the related Prospectus to be supplemented by any
Prospectus supplement required by applicable law, and as so
supplemented to be filed pursuant to Rule 424; and comply with the
provisions of the Securities Act and the Exchange Act applicable to it
or them with respect to the disposition of all securities covered by
such Registration Statement as so amended or in such Prospectus as so
supplemented and with subsequent resale of any securities being sold by
a Participating Broker-Dealer covered by any such Prospectus during the
Applicable Period;
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period relating
thereto from whom the Issuer has received written notice that it will
be a Participating Broker-Dealer in the Exchange Offer, notify the
selling Holders of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, their counsel and the managing
underwriters, if any, promptly (but in any event within two Business
Days), and confirm such notice in writing, (i)(A) when a Prospectus or
any Prospectus supplement or post-effective amendment has been filed,
and (B) with respect to a Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act,
(ii) of any request by the SEC or any other Federal or state
governmental authority for amendments or supplements to a Registration
Statement or related Prospectus or for additional information, (iii) of
the issuance by the SEC of any stop order suspending or enjoining the
use of a Prospectus or the effectiveness of a Registration Statement or
the initiation of any proceedings for that purpose, (iv) of the receipt
by the Issuer and the Guarantors of any notification with respect to
the suspension of the qualification or exemption from qualification of
any of
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the Registrable Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer for offer or sale in any jurisdiction, or
the initiation or threatening of any proceeding for such purpose, and
(v) of the happening of any event or information becoming known to the
Issuer and the Guarantors that makes any statement made in a
Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in
or amendments or supplements to such Registration Statement, Prospectus
or documents so that, in the case of the Registration Statement, it
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, not misleading, and that in the case of a
Prospectus, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading and (vi) of the
determination by the Issuer that a post-effective amendment to a
Registration Statement would be appropriate;
(d) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, use its
reasonable best efforts to avoid the issuance of or, if issued, obtain
the withdrawal of any order suspending the use of a Prospectus or the
effectiveness of a Registration Statement or suspending the
qualification (or exemption from qualification) of any of the
Registrable Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer, for sale in any jurisdiction, at the earliest
practicable date;
(e) If a Shelf Registration Statement is filed pursuant to Section
3 hereof and if requested by the managing underwriters, if any, or the
Holders of a majority in aggregate principal amount of the Registrable
Notes being sold in connection with any underwritten offering or any
Participating Broker-Dealer, (i) promptly as practicable incorporate in
a Prospectus supplement or post-effective amendment such information as
the managing underwriters, if any, and such Holders, any Participating
Broker-Dealer
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or counsel for any of them determine is reasonably necessary to be
included therein, (ii) make all required filings of such Prospectus
supplement or such post-effective amendment under the Securities Act as
soon as practicable after the Issuer has received notification of the
matters to be incorporated in such Prospectus supplement or
post-effective amendment and (iii) supplement or make amendments to
such Registration Statement;
(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, furnish
to each selling Holder of Registrable Notes and to each such
Participating Broker-Dealer who so requests and to counsel of each
managing underwriter, if any, at the sole expense of the Issuer, at
least one conformed copy of such Registration Statement and each
amendment thereto, including financial statements and schedules, all
documents incorporated or deemed to be incorporated therein by
reference, and all exhibits to the extent requested (including those
previously furnished or incorporated by reference) as soon as
practicable after the filing of such documents with the SEC;
(g) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, deliver
to each selling Holder of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, their respective counsel, and the
underwriters, if any, without charge, as many copies of the Prospectus
(including each form of preliminary prospectus) and each amendment or
supplement thereto as such Persons may reasonably request; and, subject
to the last paragraph of this Section 5, the Issuer hereby consents to
the use of such Prospectus and each amendment or supplement thereto by
each of the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, and the underwriters,
if any, in connection with the offering and sale of the Registrable
Notes covered by, or the sale by Participating Broker-Dealers of the
Exchange Notes pursuant to, such Prospectus and any amendment or
supplement thereto;
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(h) Prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, use its reasonable best efforts to
register or qualify or cooperate with the selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as the case
may be, the managing underwriter or underwriters, if any, and their
respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of such
Registrable Notes for offer and sale under the securities or Blue Sky
laws of such jurisdictions within the United States as any such selling
Holder, Participating Broker-Dealer or underwriter reasonably requests
in writing; provided, however, that where Exchange Notes held by
Participating Broker-Dealers or Registrable Notes offered other than
through an underwritten offering, the Issuer agrees to cause the
Issuer's counsel to perform Blue Sky investigations and file
registrations and qualifications required to be filed pursuant to this
Section 5(h); keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration
Statement is required to be kept effective hereunder and do any and all
other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Notes held by
Participating Broker-Dealers or the Registrable Notes covered by the
applicable Registration Statement; provided, however, that the Issuer
shall not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) take any action
which would subject it to general service of process or to taxation in
any jurisdiction where it is not so subject;
(i) In connection with any sale or transfer of Registrable Notes
that will result in such securities no longer being Registrable Notes,
cooperate with the selling Holders thereof and the managing
underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Notes to be sold, which
certificates shall not bear any restrictive legends and shall be in a
form eligible for deposit with The Depository Trust Company and to
enable such Registrable Notes to be in such denominations and
registered in such names as the managing underwriters, if any, or such
Holders may request at least two Business Days prior to any sale of
Registrable Notes;
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(j) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, upon the
occurrence of any event contemplated by Section 5(c)(v) or 5(c)(vi), as
promptly as practicable, prepare and (subject to Section 5(a)) file
with the SEC a supplement or amendment, including, if appropriate, a
post-effective amendment, to each Registration Statement or a
supplement to the related Prospectus or any document incorporated or
deemed to be incorporated therein by reference, or file any other
document so that, as thereafter delivered to the purchasers of the
Registrable Notes being sold thereunder or to the purchasers of the
Exchange Notes to whom such Prospectus will be delivered by a
Participating Broker-Dealer, any such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, the Issuer shall not be
required to amend or supplement a Registration Statement, any related
Prospectus or any document incorporated therein by reference, in the
event that, and for a period not to exceed an aggregate of 30 days in
any calendar year if, (i) an event occurs and is continuing as a result
of which the Shelf Registration would, in the Issuer's good faith
judgment, contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, and (ii)(a) the Issuer determines in its good faith
judgment that the disclosure of such event at such time would have a
material adverse effect on the business, operations or prospects of the
Issuer or (b) the disclosure otherwise relates to a pending material
business transaction that has not yet been publicly disclosed;
(k) Use its reasonable best efforts to cause the Registrable Notes
or Exchange Notes covered by the applicable Registration Statement to
be rated with the appropriate rating agencies, if so requested by the
Holders of a majority in aggregate principal amount of Registrable
Notes being sold pursuant to such Registration Statement or the
managing underwriter or underwriters, if any;
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(l) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, to provide a CUSIP number
for the Exchange Notes (and Private Exchange Notes, if applicable);
(m) In connection with any underwritten offering of any
Registrable Notes pursuant to a Shelf Registration Statement, enter
into an underwriting agreement as is customary in underwritten
offerings of debt securities similar to the Notes in form and substance
satisfactory to the Issuer and take all such other reasonable actions
in connection therewith as are reasonably requested by the managing
underwriters, if any, or the Holders of a majority in aggregate
principal amount of the Registrable Notes being sold in order to
expedite or facilitate the disposition of such Registrable Notes, and,
in such connection, (i) make such representations and warranties to the
underwriters, if any, with respect to the business of the Issuer and
its subsidiaries (including with respect to businesses or assets
acquired or to be acquired by any of them), and the Shelf Registration
Statement, Prospectus and documents, if any, incorporated or deemed to
be incorporated by reference therein, in each case, as are customarily
made by issuers to underwriters in underwritten offerings of debt
securities similar to the Notes in form and substance satisfactory to
the Issuer, and confirm the same if and when customarily requested in
form and substance satisfactory to the Issuer; (ii) obtain opinions of
counsel to the Issuer and the Guarantors and updates thereof in form,
scope and substance reasonably satisfactory to the managing
underwriters, if any, addressed to the underwriters, if any, covering
the matters customarily covered in opinions reasonably requested in
underwritten offerings of debt securities similar to the Notes and such
other matters as may be reasonably requested by the managing
underwriters, if any; (iii) obtain customary "cold comfort" letters and
updates thereof from the independent certified public accountants of
the Issuer and the Guarantors (and, if necessary, any other independent
certified public accountants of any subsidiary of the Issuer or any of
the Guarantors or of any business acquired by the Issuer or any of the
Guarantors or any such subsidiary for which financial statements and
financial data is, or is required to be, included in the Shelf
Registration Statement) in form, scope and substance reasonably
satisfactory to the managing underwriters, if any, addressed to the
underwriters, if any, such letters to be in customary form and covering
matters of the type customarily covered in
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"cold comfort" letters in connection with underwritten offerings of
debt securities similar to the Notes and such other matters as may be
reasonably requested by the underwriters as permitted by Statement on
Auditing Standards No. 72; and (iv) if an underwriting agreement is
entered into, the same shall contain indemnification provisions and
procedures no less favorable to the selling Holders and the
underwriters, if any, than those set forth in Section 7 hereof (or such
other provisions and procedures acceptable to Holders of a majority in
aggregate principal amount of Registrable Notes covered by such Shelf
Registration Statement and the managing underwriters, if any) entered
into by the Issuer. The above shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder;
(n) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, make
available for inspection by any selling Holder of Registrable Notes
being sold, or each such Participating Broker-Dealer, as the case may
be, any underwriter participating in any such disposition of
Registrable Notes, if any, and any attorney, accountant or other agent
retained by any such selling Holders, or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable
business hours, all relevant financial and other records, pertinent
corporate documents and instruments of the Issuer and its subsidiaries
and each of the Guarantors (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and
employees of the Issuer and its subsidiaries and each of the Guarantors
to supply all information reasonably requested by any such Inspector in
connection with such Registration Statement. Each Inspector shall agree
in writing that it will keep Records confidential and that it will not
disclose any of the Records unless (i) the disclosure of such Records
is necessary to avoid or correct a misstatement or omission in such
Registration Statement or Prospectus, (ii) the release of such Records
is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, (iii) disclosure of such information is, in the
opinion of counsel for any
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Inspector, necessary or advisable in connection with any action, claim,
suit or proceeding, directly or indirectly, involving or potentially
involving such Inspector and arising out of, based upon, relating to,
or involving this Agreement, or any transactions contemplated hereby or
arising hereunder, or (iv) the information in such Records has been
made generally available to the public. Each selling Holder of such
Registrable Notes will be required to agree that information obtained
by it as a result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market transactions in the
securities of the Issuer unless and until such information is generally
available to the public (other than as a result of an impermissible
disclosure or failure to safeguard by such Person). Each selling Holder
of such Registrable Notes and each such Participating Broker-Dealer
will be required to further agree that it will, upon learning that
disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Issuer and allow the Issuer and the
Guarantors to undertake appropriate action to prevent disclosure of the
Records deemed confidential at the Issuer's and the Guarantors'
expense;
(o) Provide an indenture trustee for the Registrable Notes and/or
the Exchange Notes, as the case may be, and cause the Indenture or a
trust indenture provided for in Section 2(a) hereof, as the case may
be, to be qualified under the TIA not later than the effective date of
the Exchange Offer or the first Registration Statement relating to the
Registrable Notes; and, in connection therewith, cooperate with the
trustee under any such indenture and the holders of the Registrable
Notes, to effect such changes to such indenture, if any, as may be
required for such indenture to be so qualified in accordance with the
terms of the TIA; and execute, and use its reasonable efforts to cause
such trustee to execute, all customary documents as may be required to
effect such changes, and all other forms and documents required to be
filed with the SEC to enable such indenture to be so qualified in a
timely manner;
(p) Comply with all applicable rules and regulations of the SEC
and make generally available to the Issuer's securityholders earning
statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158, no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such
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period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Notes are sold to underwriters in a firm
commitment or reasonable efforts underwritten offering and (ii) if not
sold to underwriters in such an offering, commencing on the first day
of the first fiscal quarter of the Issuer after the effective date of a
Registration Statement, which statement shall cover said 12-month
periods, consistent with the requirements of Rule 158;
(q) Upon consummation of an Exchange Offer or a Private Exchange,
obtain an opinion of counsel to the Issuer and the Guarantors, in a
form customary for underwritten transactions, addressed to the Trustee
for the benefit of all Holders of Registrable Notes participating in
the Exchange Offer or the Private Exchange, as the case may be, that
the Exchange Notes or Private Exchange Notes, as the case may be, the
related Guarantees and the related indenture constitute legal, valid
and binding obligations of the Issuer and the Guarantors, enforceable
against the Issuer and the Guarantors in accordance with their
respective terms;
(r) If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Issuer (or to such other Person as directed by the Issuer) in exchange
for the Exchange Notes or the Private Exchange Notes, as the case may
be, the Issuer shall ▇▇▇▇, or cause to be marked, on such Registrable
Notes that such Registrable Notes are being cancelled in exchange for
the Exchange Notes or the Private Exchange Notes, as the case may be;
(s) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in
the disposition of such Registrable Notes and their respective counsel
in connection with any filings required to be made with the National
Association of Securities Dealers, Inc. ("NASD"); and
(t) Use its reasonable best efforts to take all other steps
reasonably necessary to effect the registration of the Exchange Notes
and/or Registrable Notes covered by a Registration Statement
contemplated hereby.
The Issuer and the Guarantors may require each seller of Registrable Notes as to
which any registration is being effected to
26
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furnish to the Issuer and the Guarantors such information regarding the
distribution of such Registrable Notes as the Issuer may reasonably request. The
Issuer and the Guarantors may exclude from such registration the Registrable
Notes of any seller who unreasonably fails to furnish such information within 20
days after receiving such request. Each seller as to which any Shelf
Registration is being effected agrees to furnish promptly to the Issuer all
information required to be disclosed in order to make the information previously
furnished to the Issuer by such seller not materially misleading.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by its acquisition of such Registrable Notes or Exchange Notes to be sold
by such Participating Broker-Dealer, as the case may be, that upon actual
receipt of any notice from the Issuer of the happening of any event of the kind
described in Sections 5(c)(iii), 5(c)(iv), 5(c)(v) or 5(c)(vi) hereof, such
Holder will forthwith discontinue disposition of such Registrable Notes covered
by such Registration Statement or Prospectus or Exchange Notes to be sold by
such Holder or Participating Broker-Dealer, as the case may be, until such
Holder's or Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(j) hereof, or until
it is advised in writing (the "Advice") by the Issuer that the use of the
applicable Prospectus may be resumed, and has received copies of any amendments
or supplements thereto. In the event that the Issuer shall give any such notice,
each of the Effectiveness Period and the Applicable Period shall be extended by
the number of days during such periods from and including the date of the giving
of such notice to and including the date when each seller of Registrable Notes
covered by such Registration Statement or Exchange Notes to be sold by such
Participating Broker-Dealer, as the case may be, shall have received (x) the
copies of the supplemented or amended Prospectus contemplated by Section 5(j)
hereof or (y) the Advice.
6. Registration Expenses
All fees and expenses incident to the performance of or compliance with
this Agreement by the Issuer and the Guarantors shall be borne by the Issuer and
the Guarantors whether or not any Registration Statement is filed or becomes
effective or the Exchange Offer is consummated, including, without limitation,
(i) all registration and filing fees (including, without limitation, (A) fees
and expenses with respect to filings required to be made with the NASD in
connection with an underwritten offering and (B) fees and expenses of compliance
with
27
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state securities or Blue Sky laws), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Notes or Exchange
Notes in a form eligible for deposit with The Depository Trust Company and of
printing Prospectuses if the printing of the prospectus is requested by the
managing underwriters, if any, by the Holders of the majority in aggregate
principal amount of the Registrable Notes included in any Registration Statement
or in respect of any Exchange Notes to be sold by any Participating
Broker-Dealer during the Applicable Period, as the case may be), (iii)
messenger, telephone and delivery expenses, (iv) reasonable fees and
disbursements of counsel for the Issuer and the Guarantors and in the case of a
Shelf Registration, the Special Counsel (not to exceed one firm of counsel (in
addition to appropriate local counsel)), (v) fees and disbursements of all
independent certified public accountants referred to in Section 5(m)(iii) hereof
(including, without limitation, the expenses of any special audit and "cold
comfort" letters required by or incident to such performance), (vi) rating
agency fees, if any, and any fees associated with making the Registrable Notes
eligible for trading through The Depository Trust Company, (vii) Securities Act
liability insurance, if the Issuer or the Guarantors desire such insurance,
(viii) fees and expenses of all other Persons retained by the Issuer and the
Guarantors, (ix) internal expenses of the Issuer and the Guarantors (including,
without limitation, all salaries and expenses of officers and employees of the
Issuer and the Guarantors performing legal or accounting duties), (x) the
expense of any annual audit of the Issuer and the Guarantors, (xi) the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, if applicable, and (xii) the expenses
relating to printing, word processing and distributing all Registration
Statements, underwriting agreements, securities sales agreements, indentures and
any other documents necessary in order to comply with this Agreement.
Notwithstanding the foregoing, the Holders of Registrable Notes being registered
shall pay all underwriting discounts, commissions and placement agent fees
attributable to the sale of such Registrable Notes.
7. Indemnification
(a) The Issuer and the Guarantors agree to indemnify and hold harmless
each Holder of Registrable Notes and each Participating Broker-Dealer selling
Exchange Notes during the Applicable Period, the Affiliates, directors,
officers, agents, representatives and employees of each such Person, and each
other Person, if any, who controls any such Person or its Affiliates within the
meaning of either Section 15 of the Securi-
28
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ties Act or Section 20 of the Exchange Act (each, a "Participant"), from and
against any and all losses, claims, damages and liabilities (including, without
limitation, the reasonable legal fees and other expenses actually incurred in
connection with any suit, action or proceeding or any claim asserted) caused by,
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement (or any amendment
thereto) or Prospectus (as amended or supplemented) or any preliminary
prospectus, or caused by, arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading except insofar as such losses, claims,
damages or liabilities are caused by, arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Participant furnished to
the Issuer and the Guarantors in writing by or on behalf of such Participant
expressly for use therein; provided, however, that the Issuer and the Guarantors
will not be liable if such untrue statement or omission or alleged untrue
statement or omission was contained or made in any preliminary prospectus and
corrected in the final Prospectus or any amendment or supplement thereto and any
such loss, liability, claim, or damage or expense suffered or incurred by the
Participants resulted from any action, claim or suit by any Person who purchased
Registrable Notes or Exchange Notes which are the subject thereof from such
Participant and it is established by the Issuer and the Guarantors in the
related proceeding that such Participant failed to deliver or provide a copy of
the final Prospectus (as amended or supplemented) to such Person with or prior
to the confirmation of the sale of such Registrable Notes or Exchange Notes sold
to such Person if required by applicable law, unless such failure to deliver or
provide a copy of the Prospectus (as amended or supplemented) was a result of
noncompliance by the Issuer and the Guarantors with Section 5 of this Agreement.
(b) Each Participant agrees, severally and not jointly, to indemnify
and hold harmless the Issuer and each of the Guarantors, their respective
directors, officers, employees, agents and representatives and each Person who
controls the Issuer or the Guarantors within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Issuer and the Guarantors to each Participant, but
only (i) with reference to information relating to such Participant furnished to
the Issuer and the Guarantors in writing by such Participant ex-
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pressly for use in any Registration Statement or Prospectus, any amendment or
supplement thereto, or any preliminary prospectus or (ii) with respect to any
untrue statement or representation made by such Participant in writing to the
Issuer and the Guarantors. The liability of any Participant under this paragraph
shall in no event exceed the proceeds received by such Participant from sales of
Registrable Notes or Exchange Notes giving rise to such obligations.
(c) If any suit, action, proceeding (including any governmental
or regulatory investigation), claim or demand shall be brought or asserted
against any Person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such Person (the "Indemnified Person")
shall promptly notify the Person against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and the Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding; provided, however, that the failure to so notify the
Indemnifying Person shall not relieve it of any obligation or liability which it
may have hereunder or otherwise (unless and only to the extent that such failure
directly results in the loss or compromise of any material rights or defenses by
the Indemnifying Person and the Indemnifying Person was not otherwise aware of
such action or claim). In any such proceeding, any Indemnified Person shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless (i) the Indemnifying
Person and the Indemnified Person shall have mutually agreed in writing to the
contrary, (ii) the Indemnifying Person shall have failed within a reasonable
period of time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that, unless there exists a conflict among Indemnified Persons, the
Indemnifying Person shall not, in connection with any one such proceeding or
separate but substantially similar related proceeding in the same jurisdiction
arising out of the same general allegations, be liable for the fees and expenses
of more than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed as
they are
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incurred. Any such separate firm for the Participants and such control Persons
of Participants shall be designated in writing by Participants who sold a
majority in interest of Registrable Notes or Exchange Notes sold by all such
Participants and any such separate firm for the Issuer, its directors, its
officers, its employees, its agents, its representatives and such control
Persons of the Issuer shall be designated in writing by the Issuer. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its prior written consent, but if settled with such consent or
if there be a final non-appealable judgment for the plaintiff for which the
Indemnified Person is entitled to indemnification pursuant to this Agreement,
the Indemnifying Person agrees to indemnify and hold harmless each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. No Indemnifying Person shall, without the prior written consent of the
Indemnified Person (which consent shall not be unreasonably withheld or
delayed), effect any settlement or compromise of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party, or indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement (A) includes an unconditional written release of such
Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding and (B) does not include any statement as to an admission of
fault, culpability or failure to act by or on behalf of any Indemnified Person.
(d) If the indemnification provided for in the first and second
paragraphs of this Section 7 is for any reason unavailable to, or insufficient
to hold harmless, an Indemnified Person in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying Person under
such paragraphs, in lieu of indemnifying such Indemnified Person thereunder and
in order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities in such proportion as is appropriate to reflect
(i) the relative benefits received by the Indemnifying Person or Persons on the
one hand and the Indemnified Person or Persons on the other from the offering of
the Notes or (ii) if the allocation provided by the foregoing clause (i) is not
permitted by applicable law, not only such relative benefits but also the
relative fault of the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such losses,
claims,
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damages or liabilities (or actions in respect thereof) as well as any other
relevant equitable considerations. The relative benefits received by the Issuer
on the one hand and the Participants on the other shall be deemed to be in the
same proportion as the total proceeds from the offering (net of discounts and
commissions but before deducting expenses) of the Notes received by the Issuer
bear to the total proceeds received by such Participants from the sale of
Registrable Notes or Exchange Notes, as the case may be, in each case, as set
forth in the table on the cover page of the Offering Memorandum dated August 22,
1997 in respect of the sale of the Notes. The relative fault of the parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Issuer on the
one hand or such Participant or such other Indemnified Person, as the case may
be, on the other, the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Participants were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses actually incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Notes or
Exchange Notes exceeds the amount of any damages that such Participant has
otherwise been required to pay or has paid by reason of such untrue or alleged
untrue statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7 will be in addition to any liability
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which the Indemnifying Persons may otherwise have to the Indemnified Persons
referred to above.
8. Rule 144A
The Issuer and the Guarantors covenant that they will file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the SEC thereunder in a timely manner
in accordance with the requirements of the Securities Act and the Exchange Act.
The Issuer further covenants for so long as any Registrable Notes remain
outstanding, to make available to any holder or beneficial owner of Registrable
Notes in connection with any sale thereof and any prospective purchaser of such
Registrable Notes from such holder or beneficial owner the information required
by Rule 144A(d)(4) under the Securities Act in order to permit resales of such
Registrable Notes pursuant to Rule 144A.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf Registration
are to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will administer the offering will be
selected by the holders of a majority in aggregate principal amount of the
Registrable Notes included in such offering and reasonably acceptable to the
Issuer.
No Person may participate in any underwritten registration
hereunder unless such Person (i) agrees to sell such Person's Registrable Notes
on the basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
10. Miscellaneous
(a) No Inconsistent Agreements. The Issuer has not entered, as of
the date hereof, and the Issuer will not, after the date of this Agreement,
enter into any agreement with respect to any of its securities that is
inconsistent with the rights granted to the Holders of Registrable Notes in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the Holders of any of the Issuer's or
the Guarantors' other
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issued and outstanding securities under any such agreements. Neither the Issuer
nor the Guarantors have entered and neither the Issuer nor the Guarantors will
enter into any agreement with respect to any of its securities which will grant
to any Person piggy-back registration rights with respect to a Registration
Statement.
(b) Adjustments Affecting Registrable Notes. Neither the Issuer
nor the Guarantors will, directly or indirectly, take any action with respect to
the Registrable Notes as a class that would adversely affect the ability of the
Holders of Registrable Notes to include such Registrable Notes in a registration
undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, otherwise than with the prior
written consent of the Holders of not less than a majority in aggregate
principal amount of the then outstanding Registrable Notes; provided, however,
that Section 7 and this Section 10(c) may not be amended, modified or
supplemented without the prior written consent of each Holder and each
Participating Broker-Dealer (including any Person who was a Holder or
Participating Broker-Dealer of Registrable Notes or Exchange Notes, disposed of
pursuant to any Registration Statement) affected by any such amendment,
modification or supplement. Notwithstanding the foregoing, a waiver or consent
to depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Registrable Notes whose securities are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect, impair, limit or compromise the rights of other Holders of
Registrable Notes may be given by Holders of at least a majority in aggregate
principal amount of the Registrable Notes being sold by such Holders pursuant to
such Registration Statement.
(d) Notices. All notices and other communications (including
without limitation any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile:
(1) if to a Holder of Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or any such
Participating Broker-Dealer set forth on the records of the registrar
under the Indenture,
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with a copy in like manner to the Initial Purchasers as follows:
BT Securities Corporation
One Bankers Trust Plaza
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Finance Department
(2) if to the Initial Purchasers, at the addresses specified in
Section 10(d)(1);
(3) if to the Issuer or the Guarantors, as follows:
SC International Services, Inc.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇, Scholer, Fierman, ▇▇▇▇
& Handler, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; one business day
after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications shall
be concurrently delivered by the person giving the same to the Trustee at the
address and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto, including, without limitation and without the need for express
assignment, subsequent holders of Registrable Notes and Participating
Broker-Dealers and each Indemnified Person.
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(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and, all of which taken
together shall constitute one and the same Agreement.
(g) Governing Law; Submission to Jurisdiction. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW
YORK. THE ISSUER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK
STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY
FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN
RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, AND EACH IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.
(h) Severability. The remedies provided herein are cumulative and
not exclusive of any remedies provided by law. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(i) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
All references made in this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement, unless expressly stated otherwise.
(j) Notes Held by the Issuer or its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Issuer or its Affiliates (as
such term is defined in Rule 405 under the Securities Act) shall not be
36
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counted in determining whether such consent or approval was given by the Holders
of such required percentage.
(k) Third Party Beneficiaries. Holders of Registrable Notes and
Participating Broker-Dealers are intended third party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final expression of
their agreement and is intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect to
the registration rights granted by the Issuer with respect to the Registrable
Notes. This Agreement supersedes all prior agreements and understandings between
the parties with respect to such subject matter.
37
IN WITNESS WHEREOF, the parties have caused this Registration
Rights Agreement to be duly executed as of the date first written above.
THE ISSUER:
SC INTERNATIONAL SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial and
Administrative Officer
THE GUARANTORS:
SKY CHEFS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Authorized Signatory
CATERAIR INTERNATIONAL, INC. (II)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Authorized Signatory
CATERAIR INTERNATIONAL
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Authorized Signatory
38
CATERAIR INTERNATIONAL TRANSITION
CORPORATION
ONEX OHIO ACCEPTANCE CORPORATION
ONEX OHIO FINANCE CORP.
ONEX OHIO FINANCE CORP. II
ONEX OHIO EQUITY CORP.
ONEX OHIO EQUITY CORP. II
ONEX OHIO CREDIT CORP.
ONEX OHIO CREDIT CORP. II
ONEX OHIO CAPITAL CORP.
ONEX OHIO CAPITAL CORP. II
ONEX OHIO FISCAL CORP.
ONEX OHIO FISCAL CORP. II
ONEX OHIO FUNDS CORP.
ONEX OHIO FUNDS CORP. II
ARLINGTON SERVICES, INC.
ARLINGTON SERVICES HOLDING
CORPORATION
SKY CHEFS INTERNATIONAL CORP.
BETHESDA SERVICES, INC
CATERAIR NEW ZEALAND LIMITED
(FORMERLY KNOWN AS BETHESDA
SERVICES HOLDING CORPORATION)
JFK CATERERS, INC.
CATERAIR CONSULTING SERVICES
CORPORATION
WESTERN AIRE CHEF, INC.
CATERAIR AIRPORT PROPERTIES, INC.
CATERAIR ST. ▇▇▇▇▇▇ HOLDING
CORPORATION
SKY CHEFS ARGENTINE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Authorized Signatory
39
THE INITIAL PURCHASERS:
BT SECURITIES CORPORATION
▇.▇. ▇▇▇▇▇▇ SECURITIES, INC.
CREDIT SUISSE FIRST BOSTON
CORPORATION
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
BANKERS TRUST INTERNATIONAL PLC
by BT SECURITIES CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director